Michigan appeals court ruling could mean Macomb charges dismissed

A state appeals court ruling could eliminate a criminal case against a woman and part of the case against her husband on allegations he molested children at their day care home.

The state Court of Appeals upheld Judge Matthew Switalski’s ruling that prevents the prior court testimony of a young girl to be included in the trial of Stanley Duncan, 66, and Vita Duncan, 62, of Fraser.

Macomb County prosecutors in October appealed Switalski’s decision that prosecutors could not use preliminary exam testimony from a 4-year-old accuser regarding her claims of sexual assaults on her by Stanley Duncan that Vita Duncan allegedly knew about but failed to prevent or report.

The girl was not allowed to testify at the trial in September after she told the judge she did not know the difference between the truth and a lie.

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The girl testified twice at separate preliminary examinations.

The ruling means the old testimony still cannot be used and, barring a state Supreme Court reversal, prosecutors would likely drop the charges against Vita Duncan because the girl and her parents were the only witnesses against her.

“(Dismissing the charges) is certainly an option,” Machasic said. “It (the case against Vita Duncan) is certainly subject to a (legal) attack for insufficient evidence.”

Macomb County Prosecutor Eric Smith could not be reached for comment Monday.

Some of the charges against Stanley Duncan could be dropped, but he would still face charges that he molested two other little girls, one in recent years and a second in the 1990s.

Prosecutors in their appeal argued that the girl was “unavailable” due to “mental illness or infirmity,” so her earlier testimony could be used.

But the appeals panel said prosecutors failed to prove the girl met that standard or a second standard under another court rule.

“The prosecutor has not demonstrated that this witness was unable to testify as a result of a problem with capacity, as opposed to a sense of obligation,” the panel says in the ruling released Friday. “The prosecution … has presented no evidence that the complainant suffers an ascertainable mental illness or infirmity.”

Two of the appeals judges — Kathleen Janson, Cynthia Stephens — expressed sympathy for the alleged victim. A third judge, Michael Riordan, issued a second concurring opinion.

“The court is certainly sympathetic to this young complainant in light of the abuse she has allegedly suffered. However, this court functions as an error-correcting court,” they say in the opinion.

Stanley Duncan is accused of molesting a 3-year-old and a 4-year-girl from 2009 through 2011 in the alleged unlicensed child care facility Vita Duncan operated in their Fraser home, as well the girl in the 1990s. He faces five counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct. Vita Duncan faces charges of two counts each of first- and second-degree criminal sexual conduct, under aiding and abetting.

The 1990s’ accuser, now 19, and the second girl, now 5, testified during the trial before it was stayed prior to completion.

Vita Duncan also faces a misdemeanor charge of operating a day care facility without a license.

About the Author

My beat is the courts of Macomb County and general assignment.
Read more of Jameson Cook's court coverage on his blog http://courthousedish.blogspot.com/ Reach the author at jamie.cook@macombdaily.com
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